The number of cases where the Court has ruled in favor of the plaintiff against a long-term disability insurance company who has failed to order an independent medical examination (IME) has risen over the last 10 years. For this reason, it is becoming more common to see long-term disability insurance plans ordering IMEs as a way to demonstrate the thoroughness and care with which they have processed claims. This is all the more important when a disability insurance company knows that its decision will be considered under the arbitrary and capricious standard of review.
Blackwell vs. Unum provides an opportunity to investigate the role independent medical examinations can play in a court's decision. Paul Blackwell had been the Vice president of Quality Management at Beverly Enterprises, Inc. when he filed for long-term disability benefits from the Unum policy he participated in at Beverly. His job had required extensive travel between Beverly's over 550 facilities across the United States.
At the time of his application for long-term disability benefits, Blackwell had been diagnosed with osteoarthritis. He had not responded to treatments of Vioxx and presented evidence that he was suffering from a well confirmed case of disabling arthritis. The claims handler asked Unum's Vice-president and Medical Director to conduct a paper review of Blackwell's medical records.
He found that the records failed to support Blackwell's inability to continue work as a vice president of quality management. He recommended that the claims handler order an IME and a functional capacity evaluation (FCE) to guarantee a full and fair review of Blackwell's claim.
The claims handler followed through on this recommendation. The IME took 62 minutes to complete. During this physical exam, the doctor found only mild symptoms of rheumatoid arthritis. Blackwell failed to show significant joint mobility issues. He had no difficulty writing or filling out the intake forms. When he prepared the IME report, the doctor made it clear that he had considered whether Blackwell qualified for temporary disability. He concluded that the medical evidence just didn't support room and toward arthritis severe enough to warrant even temporary disability.
The claims handler also arranged for an FCE. This test showed that Blackwell still have the ability to handle medium-level low lifts and mid-lifts, as well as the ability to lift light objects. This finding put into question whether his physician had imposed realistic limitations on his activities. The FCE also found that Blackwell could walk, kneel, reach to the immediate right or left, finger, push or pull a cart weighing 40 lbs., and carry 20 lbs. frequently. He could stoop, crouch, handle, climb stairs, sit and stand on an occasional basis. The FCE raced only one question. Was Blackwell able to sustain any of these activities over a sustained period of time? One observation suggested that there was a possibility that Blackwell would not be able to do so. The person giving the test observed that Blackwell needed to change his sitting position every 2 or 3 minutes.
These two pieces of information would contribute to the proof, under the arbitrary and capricious standard of review, that Unum had taken its time to do a thorough investigation into Blackwell's claim. Unum had reviewed the initial claim, and when it failed to supply all the information needed, the claims handler had requested the necessary medical records from Blackwell's healthcare providers. Only then was an in-house clinical review ordered.
Unum's top in-house physician sent a copy of his report to Blackwell's primary care physician to review and input. He went on to recommend the IME and FCE. It wasn't until Unum had made every reasonable effort to make sure that Blackwell's file had the evidence needed to determine whether he met the specifications of the policy for receiving benefits, that the disability insurance plan rejected his claim.
In this case, the IME and the FCE among other evidence in the administrative record proved an insurmountable obstacle for the disability attorney representing Blackwell. He was unable to prove that Unum had made a biased decision.
- When it seemed that the restrictions imposed by Blackwell's primary care physician were excessive, the file was sent to someone with more expertise.
- When it appeared that Blackwell had filled out the Attending Physician Statement, Unum contacted his physician to find out why.
- The doctor performing the review of Blackwell's medical record made careful notes responding to the observations made by Blackwell's rheumatologist.
- When Unum ordered the FCE, it provided the list of restrictions and limitations that his physician had recommended on the attending physician statement, all the medical records Unum had obtained, his employer's official job description and Blackwell's own description of the physical requirements of his job.